Dui Kol v Regina

Introduction

1. The applicant pleaded guilty to an offence, committed in February 2013, of people smuggling under s 233C of the Migration Act 1958 (Cth) by facilitating the bringing or coming to Australia of a group of five or more people who were non-citizens and who did not have a lawful right to enter Australia. He was sentenced on 4 April 2014 to imprisonment for 9 years with a non-parole period of 5 years, commencing on 6 February 2013. On 12 September 2012 the applicant had been convicted of an offence of people smuggling contrary to s 233A of the Migration Act 1958 and sentenced to imprisonment for 20 months with an order that he be released after serving 10 months and upon giving security by recognisance of $500 and on condition that he be of good behaviour for 12 months. As he had already been in custody for about 20 months, he was very shortly released and deported to Indonesia. The mandatory minimum penalty regime in s 236B applied to the offence of February 2013 and required the imposition of a sentence of at least 5 years with a non-parole period of 3 years. The maximum penalty was 20 years. If this offence were "a repeat offence", the mandatory minimum sentence was imprisonment for 8 years with a non-parole period of 5 years. The applicant was, for reasons not presently material, mistakenly sentenced upon the basis that the second offence was a "repeat offence": it did not actually fit the definition of such an offence prescribed by s 236B(5).
2. The applicant appeals from the sentence upon the ground that the Court acted under the misapprehension that the offence was a "repeat offence" to which the higher mandatory minimum prescribed sentences applied. The Crown concedes the error and the need for this Court to resentence if a lesser sentence is warranted in law, under s 6(3) of the Criminal Appeal Act 1912 (NSW) but submits that no lesser sentence is, in the circumstances, warranted.

Mandatory minimum penalty

1. The relevant provision of the Migration Act is seemingly simple - 236B Mandatory minimum penalties for certain offences (1) This section applies if a person is convicted of an offence against section 233B, 233C or 234A. (2) This section does not apply if it is established on the balance of probabilities that the person was aged under 18 years when the offence was committed. (3) The court must impose a sentence of imprisonment of at least: (a) if the conviction is for an offence against section 233B - 8 years; or (b) … (c) in any other case - 5 years. (4) The court must also set a non‑parole period of at least: (a) if the conviction is for an offence to which paragraph (3)(a) or (b) applies - 5 years; or (b) in any other case - 3 years. (5) … (6) In this section: non‑parole period has the same meaning as it has in Part IB of the Crimes Act 1914.
2. At first, the application of this provision was thought to be straightforward. Thus, in R v Pot, Wetangky and Lande (unreported, NT Supreme Court, Riley CJ, 18 January 2011) gave it the effect that, if, after taking into account the usually applicable principles of sentencing both at common law and under part 1B of the Crimes Act 1914 (Cth) an otherwise appropriate sentence would be less than the mandatory minimum sentence and non-parole period, the latter would apply so that what one might call the "conventional" sentence would be increased to the mandatory term. Riley CJ explained this approach as follows - There is no suggestion that by creating the mandatory minimum penalty provided for in s 233C of the Migration Act the legislature intended to undermine those general sentencing principles found in part 1B of the Crimes Act or the relevant common law principles. There is nothing to suggest that it was intended that the requirements of s 16A(1) of the Crimes Act should be read to require a Court to determine the appropriate severity of a sentence by reference to a predetermined base not necessarily reflecting the circumstances of the offending and which may be removed from what the Court would otherwise consider an appropriate sentence in all the circumstances. The minimum sentence previously applicable was not abrogated by the inclusion of s 233C of the Act. The section simply required a sentence of at least the mandatory minimum to be applied in identified circumstances. The explanatory memorandum expressed the position in these terms: Mandatory minimum penalties still provide a court with discretion when determining the appropriate sentence providing that the Court does not go below the mandatory minimum sentence and non-parole period. This allows the Court to have regard to the circumstances of both the offence and the offender. The Court continues to be obliged to have regard to the same general sentencing principles as was previously the case, including determining a sentence of a severity appropriate in all the circumstances of the offence. In my opinion, the section provides the minimum sentence that can be imposed in the identified circumstances but does not go so far as to reserve that mandatory minimum sentence only for cases at the lowest end of seriousness for relevant offending, as submitted by the Crown. A clear expression of such an intention would be expected and is not present.
3. This view, however, was held to be wrong in a number of succeeding cases, in particular in Queensland: Bahar v The Queen [2011] WASCA 249; (2011) 45 WAR 100; 255 FLR 80; 214 A Crim R 417, R v Karabi [2012] QCA 47; (2012) 220 A Crim R 338; R v Nitu [2012] QCA 224; [2013] 1 Qd R 459; (2012) 269 FLR 216; (2013) 222 A Crim R 246; R v Latif; ex parte Cth DPP [2012] QCA 278; R v Selu; ex parte Cth DPP [2012] QCA 345. The explanation for this different approach adopted in all these judgments comes from the judgment of McLure P in Bahar, Martin CJ and Mazza J agreeing, in substance treating the statutory minimum penalty as an indicator of least seriousness by parity of the reasoning concerning the character of the statutory maximum penalty as applying to cases in the most serious category of offending. Her Honour's explanation for this conclusion started with the point (with respect obviously correct) that the mode of application of s 233C "is solely a matter of statutory construction" (ibid at [39]). Her Honour then discussed the relationship between the Crimes Act and the common law principles of sentencing including the principle of proportionality at [44], observing - [45] The seriousness of an offence is to be determined by taking into account both a statutory maximum penalty as well as any statutory minimum penalty.
4. Her Honour continued - The High Court in Markarian v The Queen (2005) 228 CLR 357 referred to the role and relevance of maximum statutory penalties. The majority said (at [31]): Careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick. Prima facie, that statement is equally applicable to minimum statutory penalties. See also Muldrock v The Queen (2011) 244 CLR 120 [26] - [31]. (The passages from Muldrock here referred to concern the requirement to take into account the maximum sentence and the standard non-parole period as "two legislative guide posts").
5. McClure P then referred to the "presumption … that the legislature does not intend to alter common law rights or doctrines/principles" unless the presumption is "rebutted by clear and unambiguous language or a test to like effect", concluding that s 233C (the earlier version of s236B, relevantly the same) "makes it unequivocally clear that the Commonwealth Parliament intended to deprive a judicial officer sentencing an offender for a breach of s 232A of both the power to impose [less than the mandatory minimum term]": [51]-[53]. Her Honour went on to say - Otherwise, there is no positive inconsistency in terms between s 233C and the general sentencing principles in the Crimes Act as supplemented by common law principles. In particular, the sentencing principles are intentionally framed at a level of generality for application within the boundaries of power established not only by the maximum statutory penalty but also the minimum statutory penalty. The statutory maximum and minimum also dictate the seriousness of the offence for the purpose of s 16A(1). It would be positively inconsistent with the statutory scheme for a sentencing judge to make his or her own assessment as to the "just and appropriate" sentence ignoring the mandatory minimum or mandatory maximum penalty and then to impose something other than a "just and appropriate" sentence (whether as to type or length) in order to bring it up to the statutory minimum or down to the statutory maximum, as the case may be. The statutory minimum and statutory maximum penalties are the floor and ceiling respectively within which the sentencing judge has a sentencing discretion to which the general sentencing principles are to be applied.
6. McClure P's reasoning, and the above passage in particular were approved in this court by Allsop P (Bathurst CJ, McClellan CJ at CL, Hall and Bellew JJ agreeing) in Karim v R [2013] NSWCCA 23; (2013) NSWLR 268 at [44]. Allsop P added a further reason for his agreement with this construction - There is an independent reason that leads me to favour the construction in Bahar. Equal justice inheres in judicial power, the fabric of the law and the basal notion of justice that underpins, informs and binds the legal system. As Gaudron, Gummow and Hayne JJ said in Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584 at 608 [65], "[e]qual justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect" (emphasis in original). To approach the matter as in Pot would see cases of perceived different seriousness by force of statute given the same penalty. Thus, if a judge thought the relevant offending in one case to be of low seriousness and worthy of a sentence of 6 months, but in another case to be of significant seriousness worthy of imprisonment for 5 years, she or he would be obliged to revise the first sentence to 5, leaving the second sentence at that point also. The statute, and through it the order of the Court, would be the instrument of unequal justice and, so, injustice: R v Green [2010] NSWCCA 313; (2010) 207 A Crim R 148 at 156 [23]; and Green v The Queen [2011] HCA 49; (2011) 244 CLR 462 at 466 [4] and 489 [80]. On the other hand, approaching the matter as in Bahar permits all usual sentencing considerations, including parity, to be accommodated, though in a more compressed range, and with the consequence of a general increase in the levels of sentences.
7. There can be no question but that this Court is bound to adopt the Bahar approach. Nevertheless I wish to take this opportunity to express my respectful disagreement with its correctness, although I do so briefly given that the question was not argued in the appeal (no doubt because it would have been futile to do so).
8. Essentially, (and with unfeigned respect to the eminent judges who have thought otherwise) it is a mistake to import into s 233C a great deal more than the section, in terms, requires. There is nothing in the language of the section which suggests, let alone requires, that it be understood as applying the minimum sentence to cases in the least culpable category of seriousness. The section says nothing about seriousness. It simply requires a sentence to be imposed of at least the specified length. Its ordinary meaning is that, whatever the degree of culpability which might, under the generally applicable law of sentencing, lead to a lesser sentence, the minimum mandatory sentence is to be imposed. A maximum penalty must be understood as meaning that, however grave the culpability of the offender might be, no greater penalty than the maximum may be imposed and is reserved for cases falling into the most culpable category. But there is no logical imperative which requires the minimum penalty to be applied only to cases falling into the least culpable category. The argument from symmetry, though beguiling, is by and large not a useful interpretative tool, legislation being what it is. The supposition that Parliament intended this outcome is a fiction and inconsistent with the Explanatory Memorandum.
9. Furthermore, as is obvious, the current interpretation of the section artificially distorts the sentences upwards. If the considerations which apply in every other serious criminal case would lead to a sentence exceeding the minimum, there is no logical reason why that sentence should be harsher merely because, had the applicable sentence been less than the minimum, it would need to be increased to the minimum level. Accepting that the minimum sentence expresses the legislature's assessment of seriousness, the section does not, in terms, require more to be done than to impose the mandatory minimum sentence where otherwise the sentence would be less harsh. The present construction erects unnecessary jurisprudence on what is, essentially, a simple arbitrary intervention in the sentencing process. I say "arbitrary" because the minimum sentence takes no account of the actual circumstances of the offence (except, of course, for its essential elements) or the personal situation of the offender; it is, plainly enough, designed as a deterrent with all other considerations to be ignored.
10. The advantage of the Pot interpretation is that it does least violence to fundamental principles of criminal justice, which measures punishment, with regard to the statutory benchmarks, certainly, but necessarily also by reference to the particular circumstances of the offence and of the offender, both of which may vary very significantly from case to case. It also maintains as much as possible the important principle that offenders are not sentenced by the legislature but by independent courts.
11. In Magaming v The Queen [2013] HCA 40; (2013) 252 CLR 381; (2013) 302 ALR 461; (2013) 87 ALJR 1060, the Court dealt with the question whether the prescription of a mandatory minimum sentence for an offence under s 233C(1) was constitutional. French CJ, Hayne, Crennan, Kiefel and Bell JJ observed (at [48]), a propos whether the mandatory minimum penalty was arbitrary and non-judicial, that, as with a maximum available sentence constituting a yardstick of the upper range, "[the] prescription of a mandatory minimum penalty … fixes one end of the relevant yard stick"; see also Keane J at [103], [105]. However, I would not read these passages as directed to the distinction to which I have referred.
12. Since I have entered the lion's den, I might as well take up the "independent reason" adumbrated by Allsop P in Karim at [45]. I respectfully suggest that this argument is unpersuasive. It is true that, as his Honour observed, to "approach the matter as in Pot would see cases of perceived different seriousness by force of statute given the same penalty". However, the principle of parity has never justified the increase of a comparative sentence but only a decrease. It is also true that the same penalty would apply to cases of differing seriousness, assessed by reference to varying individual objective and subjective circumstances, but those circumstances are precisely what the legislature has mandated should be ignored in those cases. Imposing harsher penalties in the other cases than the circumstances would (absent the mandatory minimum) warrant avoids the problem of unequal outcomes at the price of unjustly increased harshness. In the example given by his Honour, there can be no getting over the apparent injustice of imposing, in a case of "low seriousness and worthy of a sentence of 6 months", the mandatory sentence which is more harsh by a very significant margin. To then increase a sentence which, on usual principles, warrants a sentence greater than the minimum but must be further increased because of the distorting effect of the minimum penalty is simply to multiply the injustice. I accept, of course, that the Court must apply the law as it is prescribed by the legislature but I do not see that there is a duty to disguise its inherently arbitrary character by emollient jurisprudence.

Facts

1. The following account is taken from the sentencing judge's reasons in which his Honour, in substance, set out the statement of agreed facts. One Naghie Karini had arranged for a vessel to carry eighty-eight Iranians from Indonesia with a view to bringing them to Australia contrary to Australian immigration law. The vessel departed from an unknown village on the Javanese shore, with the applicant being the only crew member on board. The vessel was wooden, seventeen metres long, four metres wide with a main deck carrying the bridge with the engine housed below the bridge in the lower deck. There were sufficient life jackets for everybody on board. The applicant, when asked by one of the passengers about their destination, said they were heading "towards Darwin" because, "This is the only route I know. I've done this twice before, I've taken passengers to Darwin twice". The passengers believed there was not enough food on board to last the twelve or thirteen days it would take to get to Darwin and showed a global positioning system which they had with them to the applicant to indicate the route he intended to take and the route which the passengers believed should be taken. At this point, a fishing boat was sighted, the passengers were instructed to go below deck, the applicant said he would check with the other boat and, if it had a GPS, he would adjust his heading accordingly. However the vessel did not have a GPS and the applicant continued as before. When queried by a passenger about the heading, he said, "I know Darwin, I go to Darwin two times before. I don't have GPS, I don't know way to Christmas Island without GPS … I think four or five days I arrive in Darwin but I don't have GPS, maybe one day longer". Eventually, however, the applicant altered his course as requested by the passengers. On 6 February, about midday (some two hours later), the vessel was sighted by a border protection aircraft when it was three nautical miles inside the Australian contiguous zone. It was intercepted by an Australian naval vessel when it was 11 nautical miles from Christmas Island and about 13 nautical miles within the Australian contiguous zone. Sometime later, the applicant and the passengers were transferred into the custody of immigration officers at Christmas Island. He was eventually interviewed by members of the Australian Federal Police but declined to answer any questions.
2. The sentencing judge concluded from the tendered photographs that the vessel "was not terribly seaworthy" and the applicant, along with the eighty-eight passengers, might be thought to have been in considerable peril. His Honour said that he did not know why the applicant undertook the journey but surmised that it was because of his poverty. Of course, he knew that he was committing an offence against Australian laws and the consequences of interception which he understood would be inevitable. The applicant had the responsibility of insuring that the vessel reached Australia though he was neither given adequate navigational equipment and, perhaps, did not himself have sufficient skills to undertake this voyage competently. The passengers had to assist him. The applicant had not organised the voyage but was aware of the nature of the enterprise. His Honour concluded, "He was set up to take the risks by persons in Indonesia, no doubt who were taking much of the money."
3. In respect of the applicant's earlier offence, to which he pleaded guilty, he was the master of an Indonesian vessel, and with two other crew, was taking 57 asylum seekers including men, women and children to Ashmore Reef, when the boat was intercepted. At the time, his wife was pregnant and he was making $1 or $2 a day when he could get work as a fisherman. He was offered the equivalent of AUD50 to undertake a voyage, which was described to him as "a picnic". The circumstances of the voyage are not presently relevant except that it was accepted by the County Court that, given his background, the lack of experience and where he had grown up and lived, he did believe at first that he was employed to take a group of people on a picnic, thinking that Ashmore Reef was a part of Indonesia and only later became aware that the voyage in fact involved the smuggling of asylum seekers to Australia.

Subjective features

1. At the time of the earlier sentence proceedings (the source for information about the subjective case) the applicant had no prior convictions. He was then 39 years old born in a village in North Buton on Southeast Sulawesi. His parents were fisher folk who were still alive. He has older brothers and sisters and is married with children of his own. He was still living with his parents near the village where he was born when he undertook the first trip. He had left school at the age of 15, worked as a fisherman and married about 2003, as at 2012 with two children aged 5 and 3 years. He and his family lived in a single room in a small block of flats with concrete floor and walls and no running water or electricity, sharing a communal bathroom with five other families and obtaining water from a well attached to the building. The applicant lived in poverty, making $1 or $2 a day when he was able to get work. As mentioned, when he undertook his previous voyage his wife was pregnant. Tragically, that child lived only two days. It is fair to say that the applicant has been a responsible husband and father working very hard for little pay to support his family. It is reasonable to infer that he undertook the present voyage by being offered what for him would have been a substantial sum (given that he was aware of the inevitability and consequences of interception) almost certainly trivial by Australian standards and a tiny proportion of the money paid to Mr Karimee by his passengers. He is now 44 years of age.
2. The applicant has been diagnosed with Hepatitis B which, if chronic, carries a significantly increased risk of developing liver cancer. He is being treated for this condition in custody. The sentencing judge accepted that this illness may make his time in custody "euphemistically…somewhat less comfortable". His Honour accepted that, although the applicant knew what he was doing, the repeated misconduct was a result of his own appalling circumstances and family situation.

Discussion

1. As the Crown rightly points out - indeed, it is conceded by counsel for the applicant - the fact the applicant has previously offended suggests that greater emphasis needs to be given to the need for personal deterrence. Otherwise, the subjective circumstances are such as to excite the sympathy of the Court. The Crown submits that the accused's conduct imperilled the safety of the eighty-eight asylum seekers, a number which should be compared with the number required for the offence itself of only more than five people. (The number of asylum seekers is, of course, a measure of the objective seriousness of the offence but I do not think that its significance is usefully informed by comparison with the minimum number required to make out the offence.) The applicant was on conditional liberty for a similar offence. He performed the role of captain but he was not the organiser. His role was vital to the enterprise. At the same time, his poverty was used by the organiser to manipulate him into undertaking the voyage which, he would have known, would involve interception and a lengthy gaol sentence and corresponding separation from his family, his wife and children. It is the certainty of being caught which justifies the conclusion that he was driven to commit the crime by his personal situation, of which the organiser took advantage but, of course, no responsibility. Indeed, the organiser succeeded.
2. Broadly speaking the matters of peculiar relevance to assessing the seriousness of this offence are as follows (adopted from Cita & Anor v R [2001] WASCA 5; (2001) 120 A Crim R 307 at [24], [25] and [28]): the frustration of the legislative and administrative system by which Australia seeks to deal in a fair and orderly way with non-citizens who wish to come to Australia, including, especially, refugees; the considerable administrative burden and expense for the asylum seekers' care and custody, as well as the costs of detection; and the significant health and quarantine risks associated with the unofficial entry of these people. The Crown also points to the diversion of funds from dealing with the needs of others who have not found the opportunity or money to effect a clandestine entry into Australia and the the exploitation of non-citizens attempting to enter Australia illegally, relying upon the above cited passages from Cita. To my mind, there is no basis for assuming that funds needed to deal with unlawful entrance involve any diversion from caring for the needs of legal immigrants although, of course, it must be accepted, that the extra expense represents funds which would no doubt be available to be used by the government for other purposes. The Crown also submitted that the asylum seekers were exploited by the payment of large sums of money to secure their passage and taking the risks of such a journey. However, whilst making a profit from the desperation of others may be regarded in a general sense as morally repugnant, I do not see how in any particular case or cases this can be seen as exploitative without information about the facts, for example, the ability of the asylum seekers to pay and the actual motive for wishing to come to Australia. These qualifications do not lessen the force of the other matters to which I have referred which demonstrate that the applicant was guilty of a serious crime against Australian law. I would add the important factor that no society can permit people to make a profit out of breaking the laws.
3. Whilst general deterrence is undoubtedly relevant, at the same time, it is necessary to be realistic about it. Whilst ever there is a large number (as plainly is the case) of people with some seafaring experience whose poverty makes even small payments a significant reward, the long line of willing participants such as the applicant will not much be diminished by sentences which, in this country, are regarded as appropriate, even giving full weight to the evident policy of Parliament and the measure of seriousness implicit in the provisions to which I have referred.
4. Given the applicant's vital role, his criminality cannot be regarded as being in the lowest category, so his sentence must be greater than the prescribed minimum.
5. The applicant has pleaded guilty to the charge which, the Crown agrees, was entered at the first reasonable opportunity. In so far as the Crown case was overwhelming, the plea does not evidence any contrition and there is no other evidence in this regard. It has been held that the general principles stated in R v Thompson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; (2000) 115 A Crim R 104 apply and the range of discount of 10% to 25% is applicable: R v Bugeja [2001] NSWCCA 196 at [24]-[28]; R v Otto [2005] NSWCCA 333; (2005) 157 A Crim R 540 at [69]. It is also important to note that the severity of punishment is not measured in a linear way. I propose a starting point of 7 years head sentence, reduced by 25% to 5 years and 3 months. It will be seen that the ratio between the applicable mandatory minimum sentence and the corresponding non-parole period is 5:3, that is, the non-parole period is 60% of the minimum sentence. (A similar ratio of 63% applies to the higher mandatory minimum sentence of 8 years imprisonment.) This might imply a legislative indication of the appropriate ratio between sentence and non-parole period in other cases. However, to apply it in this case would result in a non-parole period of slightly over 3 years and 1 month which, to my mind, is inappropriately low considering the required approach to the significance of the mandatory minimum non-parole period. Accordingly, I propose a non-parole period of 3 years 10 months, commencing on 6 February 2013, the date upon which the applicant came into detention on interception of the vessel by the Royal Australian Navy.
6. McCALLUM J: I agree with the orders proposed by Adams J, for the reasons his Honour has stated. Adams J has undertaken the task of re-sentencing the applicant on the premise that we are bound by the approach stated in Bahar, approved by this Court (sitting with a bench of five) in Karim. In doing so, however, Adams J has expressed his own disagreement with that approach. With unfeigned respect to those who have joined in the approach stated in Bahar, I share Adams J's reservations as to its correctness.
7. The analysis preferred by Adams J finds some resonance in the judgment of Keane J in Magaming at [107], where his Honour described as "ironic" the appellant's invoking of the separation of powers to impugn the validity of the provisions fixing mandatory minimum sentences for certain people smuggling offences. Keane J said: "In truth, the institutional integrity of the judiciary would be compromised by accepting the argument that the validity of s 236B(3)(c) of the Act is conditional upon acceptance by a sentencing judge that the sentence enacted by the legislature is no more than is appropriate to that judge's opinion of the culpability of the person convicted of the offence."
8. Those remarks reflect an analysis which would hold that a statutory mandatory minimum sentence, while removing the power of the sentencing judge to impose a lesser sentence, does not supplant the function of assessing the appropriate (proportionate) penalty for the offending under consideration. Common to the several judgments in Magaming is an acceptance that that is exclusively a judicial function, albeit one bounded (inter alia) by statutory requirements: see majority judgment at [47]; Keane J agreeing at [100]; and per Gageler J at [61]. The exercise of that exclusively judicial function is bound but not bent by the statute.
9. I appreciate that the High Court in Magaming did not directly address the correctness of that aspect of the judgment of the Court of Criminal Appeal (which, as noted by Allsop P at [40], was not central to the argument). Nevertheless, a measure of tension may be discerned between the unanimous premise of the judgments in Magaming and the principles in Bahar approved in Karim.

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